Attorney mesothelioma missouri

Parties entitled to jury trial in discrimination suits under Missouri's Human Rights Act

State ex rel. Diehl vs. Honorable John O'Malley, No. SC84659 (Mo. banc 1-28-03) In one of its first decisions of 2003, the Missouri Supreme Court overruled 10 years of prior case law in Missouri and held that the parties in a discrimination suit brought under the Missouri Human Rights Act have a right to a jury trial.

The court viewed the case before it - an action for damages for discrimination based upon age, sex and retaliation for filing a discrimination complaint - as analogous to those kinds of actions triable by juries at the time the Missouri Constitution was enacted in 1820. The court found that an action for damages under the Missouri Human Rights Act seeks redress for intentional wrongdoing to a person and is a modern variant of claims for relief and forms of action known to the courts in 1820 for redress of wrongs done to a person.

Previously, in State ex rel. Tolbert vs. Sweeney, 828 S.W.2d 929 (Mo. App. 1982), the Missouri Court of Appeals for the Southern District had denied a jury trial under Human Rights Act claims. Two decisions of the Court of Appeals of the Eastern District followed Tolbert including Pickett vs. Emerson Electric Co., 830 S.W.2d 459, 460 (Mo. App. 1992), and Wentz vs. Industrial Automation, 847 S.W.2d 877, 888 (Mo. App. 1993).

The Supreme Court overruled Tolbert, Pickett and Wentz and has made it clear that a party in a discrimination suit under the Missouri Human Rights Act has a right to a jury trial.

Missouri Supreme Court abolishes tort of alienation of affection

Helsel vs. Noellsch, SC85053 (Mo. banc 6-17-03) In this case, the Missouri Supreme Court abolished the tort of alienation of affection in Missouri.

Katherine and David Helsel had divorced in January 2001. Subsequently, in March 2001 Katherine Helsel filed suit against Sivi Noellsch for alienation of affection, alleging that Noellsch intentionally interfered with the marriage and caused it to fail. A jury returned a verdict in favor of Helsel. Noellsch then filed post- trial motions in the trial court to abolish the tort of alienation of affection, but the trial court declined.

The Supreme Court explained that there were several persuasive reasons for abolishing the tort of alienation of affection. First, the tort is grounded in the antiquated concept that husbands had a proprietary interest in the person and services of their wives. This concept has no place in modern jurisprudence. Second, it is grounded on the faulty assumption that suits for alienation of affection must be retained as a useful means of preserving marriages and protecting families. While these are laudable goals, it is unlikely that suits for alienation of affection actually serve this purpose. To the contrary, the opposite is likely true. For instance, most such suits are brought after the marriage is either legally dissolved or irretrievably broken, and revenge, not reconciliation, is often the primary motive. The necessary adversarial positions taken in litigation over intensely personal and private matters do not serve as a useful means of preserving the marriage. Third, maintaining the tort of alienation of affection would be inconsistent with the court's position in Thomas vs. Siddiqui, 869 S.W.2d 740 (Mo. banc 1994), in which the court abolished the closely related common law tort of criminal conversation. While criminal conversation requires proof of an adulterous sexual relationship, the difference in the elements of the torts does not provide a good basis for distinguishing alienation of affection from criminal conversation because both torts simply represent different ways of interfering with the same relational interests.

Interest on punitive damages is against public policy

Hoskins vs. Business Men's Assurance Corporation, WD61744 (6-30- 03) The Court of Appeals for the Western District in a case of first impression held that interest on punitive damages is not allowable under Missouri's statute which provides for prejudgment interest in tort actions.

This case involved an asbestos premises liability suit. Plaintiff Hoskins sued the owner of the building in which he worked as well as the manufacturer of an asbestos-containing fireproofing material used in the building's construction, claiming that his mesothelioma resulted from his exposure to the asbestos in the building. Jury verdicts were rendered for plaintiff and his wife for actual and punitive damages.

After the Court of Appeals determined that it was proper to submit punitive damages, the appeals court then considered whether the trial court's award of prejudgment interest was allowable. Among other things, defendant contended that a prejudgment interest award on a judgment for punitive damages does not serve the public policies on which Section 408.040.2 is based. That statute provides that in tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim and it is rejected or is not responded to within 60 days, and the judgment amount exceeds the offer, then prejudgment interest shall be awarded.

To allow for prejudgment interest award on punitive damages would be an illogical or unreasonable result, which the legislature could not have intended. The court referred to cases from several other jurisdictions that had held that prejudgment interest is not available on punitive damages awards but found no cases upholding a prejudgment interest award on punitive damages.

The appellate court noted that the Missouri Supreme Court has explained that the two public policies or purposes served by Section 408.040.2 are (1) to compensate claimants for true costs of money damages they have incurred due to the delay of litigation and (2) where liability and damages are fairly certain, it promotes settlement and deters unfair benefit from the delay of litigation. In other words, noted the court, the prejudgment interest statute seeks to make the plaintiff whole. In contrast, the purpose of punitive damages is to inflict punishment and to serve as an example and a deterrent to similar conduct. A judgment awarding punitive damages interest is wholly incompatible with the purpose behind Section 408.040 providing for prejudgment interest.

Arbitrator has authority to declare parts of arbitration agreement unconscionable

Bob Schultz Motors Inc. vs. Kawasaki Motors Corp., No. 02-2323 (8th Cir. 7-1-03) Although a federal district court has the authority in the first instance to determine whether the parties have entered into a valid agreement to arbitrate a specific dispute, once that determination is made it is up to the arbitrator to determine whether particular provisions of the arbitration agreement are enforceable, so held the 8th U.S. Circuit Court of Appeals.

This case involved a dispute between a motorcycle dealership and Kawasaki. The dealership brought suit in Missouri state court against Kawasaki alleging that Kawasaki had wrongfully refused to consent to the dealer's purchase of another dealership. Kawasaki removed the case to the federal district court and moved to compel arbitration based on an arbitration clause in the Dealer Sales and Service Agreement. The district court rejected the dealer's claim that the distribution agreement was a contract of adhesion, violated public policy and was unconscionable, and issued an order compelling arbitration.

The arbitrator found for Kawasaki and against the dealership on all issues and held that pursuant to the parties' arbitration agreement, Kawasaki was a prevailing party and was entitled to costs and attorney fees. Subsequently, however, following a hearing on the amount of arbitration costs and attorney fees to be assessed against the dealer, which Kawasaki claimed was some $1.7 million, the arbitrator issued a final award in which he found that the franchise agreement was a contract of adhesion and that the arbitration agreements were unconscionable at the time they were made and refused to enforce the provision of the arbitration agreement which gives the prevailing party the right to recover all costs and expenses of the arbitration, including attorney fees.

Kawasaki returned to the district court and filed a motion to confirm the arbitration award as to liability and vacate or modify the decision as to attorney fees. The district court confirmed the arbitrator's award in its entirety and concluded that the arbitrator was correct when it determined that the trial court's initial ruling declaring that the arbitration ruling was valid did not specifically address the validity of the attorney fees provision.